Opinion
B326388
03-07-2024
In re K.O. et al., Persons Coming Under the Juvenile Court Law. v. RIGOBERTO O. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant Rigoberto O. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant Katie M. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 22LJJP00447A-C Jennifer W. Baronoff, Judge Pro Tempore. Affirmed.
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant Rigoberto O.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant Katie M.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
HOFFSTADT, J.
In this juvenile dependency case, Rigoberto O. (father) appeals the juvenile court's denial of his petition for a restraining order against Katie M. (mother). Because the evidence does not compel the issuance of such an order as a matter of law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Family
Father and mother have three children-K.O. (born 2019), L.O. (born 2021), and R.O. (born 2022). Mother and father have extensive criminal histories. Mother also suffers from mental illness, including postpartum depression. Mother and father's relationship is marked by "a lot of drama," which sometimes manifests as domestic violence; father last struck mother in December 2021.
Mother also has three children with another man; in a prior juvenile dependency proceeding, the eldest two were permanently placed with their father and the youngest was adopted.
II. Mother's Self-Harming Incident and Resultant Dependency Jurisdiction
Just days after mother was released from jail in October 2022, mother and father got into an argument. Although mother and father gave conflicting accounts of precisely what happened, mother started inflicting superficial wounds on her arms with a razor; father subsequently left the house, leaving their three young children in mother's care. Mother called 911, and was placed in a psychiatric hold.
Mother had been convicted of being a felon in possession of a firearm.
A few days later, the Los Angeles County Department of Children and Family Services (the Department) filed a petition asking the juvenile court to exercise dependency jurisdiction over the three children on the ground that mother's mental and emotional problems rendered her unable to care for the children and placed them at substantial risk of serious physical harm. The petition also alleged that father's conduct in leaving the children with mother after her mental and emotional problems ripened into the self-cutting incident also placed the children at substantial risk of serious physical harm. The petition alleged that jurisdiction was appropriate under subdivision (b)(1) of section 300 of the Welfare and Institutions Code.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On November 28, 2022, the juvenile court sustained the allegations in the petition and exerted dependency jurisdiction over all three children.
On December 20, 2022, the juvenile court held the dispositional hearing. The court removed the children from both parents and ordered the Department to provide the parents with reunification services.
III. Restraining Order Proceedings
In late November and early December 2022, father filed three substantively identical petitions asking the juvenile court to issue a restraining order to protect him (but not the children) from mother. In those petitions, father alleged that (1) mother had threatened his sister by stating that mother would harm anyone who took custody of the children, (2) mother broke into father's house and took items, and (3) mother told one of father's daughters that she would hurt father if he obtained custody of the children.
The juvenile court convened a hearing on the petition on January 11, 2023. Father took the stand. Although he claimed that mother posed a "real threat" to him, he also testified that mother had not contacted him since the October 2022 incident and that mother's "childish remarks" and "mind games" did not make him afraid. Although father recounted that his sister told him that mother had contacted her and told her that she would send father's head to the paternal grandmother in a box or have the Mexican Mafia visit father, father also testified that mother and his sister regularly swapped videos of the children. Although father also recounted his belief that his house was ransacked by mother, father also testified that he was incarcerated when this happened, that he did not see mother doing any ransacking, and that he was relying on what his daughter told him that mother told her. The juvenile court overruled all of mother's hearsay objections to this testimony.
The sole hearsay objection the court sustained was father's testimony about what his sister told him that mother had told her regarding father obtaining custody of the children.
The juvenile court declined to issue a restraining order. The court reasoned that it did not feel that the evidence was "enough legally" to support the issuance of an order, particularly when father's evidence consisted of "a lot of hearsay statements."
The juvenile court nevertheless entered a different order requiring mother and father not to contact, and to stay away from, one another-including through third parties.
For the first time in his reply brief, father provides reasoned argument challenging the mutual stay-away order for not having an end date. By not making any such argument in his opening brief, he has waived this challenge. (In re Luke H. (2013) 221 Cal.App.4th 1082, 1090; In re Daniel M. (2003) 110 Cal.App.4th 703, 707, fn. 4.)
IV. Appeal and Post-Appeal Transfer
Father filed a timely notice of appeal from the denial of the restraining order.
Mother also filed a timely notice of appeal. Mother's appointed counsel filed an In re Phoenix H. brief, stating that she found no arguable issues. (In re Phoenix H. (2009) 47 Cal.4th 835.) Mother was given the opportunity to file a supplemental brief, and declined to do so. We accordingly dismissed her appeal.
In July 2023, the juvenile court transferred the case to Riverside County, where father and the children resided.
DISCUSSION
Father argues that the trial court erred in denying his petition for a restraining order.
Under section 213.5, and as pertinent here, a juvenile court has the authority to issue an order "enjoining a person from molesting, . . . harassing, telephoning, including, but not limited to, making annoying telephone calls . . ., contacting, either directly or indirectly, . . . or disturbing the peace of [a dependent child's] parent." (§ 213.5, subds. (a) &(d); Jan F. v. Natalie F. (2023) 96 Cal.App.5th 583, 592.) For these purposes, a person "disturb[s] the peace" of another if she engages in "'"conduct that destroys the mental or emotional calm of the other party,"'" whether or not a reasonable person would have their calm disturbed. (In re Bruno M. (2018) 28 Cal.App.5th 990, 997, quoting Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 401; Parris J. v. Christopher U. (2023) 96 Cal.App.5th 108, 119.) To obtain a restraining order under section 213.5, the applicant need not show a prior infliction of physical harm or a reasonable apprehension of future physical abuse. (Bruno M., at p. 997; In re B.S. (2009) 172 Cal.App.4th 183, 193-194.) Instead, it is "sufficient" if there is "evidence that the restrained person has previously molested"-or, in this case, disturbed the peace of- the person to be protected. (B.S., at p. 193.)
Whether we review the juvenile court's refusal to issue a restraining order for an abuse of discretion or for substantial evidence (In re N.L. (2015) 236 Cal.App.4th 1460, 1465-1466), the question is the same: Does the evidence presented to the juvenile court "'compel[] a finding in favor of the appellant as a matter of law'"? (In re S.G. (2021) 71 Cal.App.5th 654, 671.) Because we are confined to asking solely whether the evidence was so "'"uncontradicted and unimpeached"'" and "'"of such a character and weight as to leave no room for judicial determination that [the evidence] was insufficient to support"'" issuance of the restraining order, we may not "second-guess [the juvenile court's] credibility determinations or weighing of the evidence." (Id. at pp. 671-672.)
The evidence presented in this case did not compel the juvenile court to rule in father's favor (and thus issue a restraining order against mother). That is because the evidence as to whether mother previously "disturbed the peace" of father- a prerequisite for relief-was less than compelling. To be sure, the tenor of some of mother's comments to father and to father's sister might reasonably disturb the peace of those who heard those comments. But the evidence here left "room for judicial determination" that neither father nor father's sister was subjectively disturbed by those statements. Father characterized mother's comments as "childish remarks" and "mind games," and openly admitted that he did not fear her. And whether mother's comments disturbed the peace of father's sister is not directly relevant because father did not seek to protect his sister and the sister did not herself seek a protective order. Even if we considered whether mother had disturbed father's sister's peace, the evidence did not compel a finding that it did because father's sister continued to swap pictures and videos of the children with mother; such conduct is at odds with being disturbed by mother's comments. Father also had no direct evidence that mother ransacked his home; instead, his evidence was based on hearsay-namely, his daughter's recounting of what mother told her. And father offered no evidence of any threats mother made about father to father's daughter (as father had alleged in his petitions). The evidence in this record does not compel a finding that mother had previously disturbed father's peace, and hence does not compel a finding that father is entitled to a protective order.
Father resists this conclusion with three further arguments.
First, he asserts that "substantial evidence supported the issuance of the restraining order." This assertion misstates father's burden on appeal. His burden is not to show that the evidence in the record could have supported a restraining order; it is to show that the evidence compels the issuance of such an order. Those are different burdens, and we reject father's attempt to blend them.
Second, father argues that the juvenile court erred in excluding some of his evidence as hearsay. This argument rests on a false factual premise. That is because, as noted above, the juvenile court admitted most of the hearsay father proffered; indeed, the only hearsay objection the court sustained pertained to mother's comments to father's sister regarding father obtaining custody of the kids, which were not overtly threatening. Although the juvenile court discounted the weight it accorded to the hearsay father offered (and, specifically, to father's recounting of what mother told father's family member), courts are entitled to do so (e.g., In re Lucero L. (2000) 22 Cal.4th 1227, 1244 ["'The admissibility and substantiality of hearsay evidence are different issues'"]) and, under the deferential standard of review applicable here, we cannot second-guess that determination.
Third and lastly, father contends that the totality of the evidence compels issuance of the restraining order. In addition to repeating the evidence we discuss above, father notes that mother was recently released from prison for being a felon in possession of a firearm, and that some of father's relatives were reluctant to take custody of the children due to fear of mother's threats. These contentions do not alter our analysis. To begin, whether father's relatives had their peace disturbed is largely irrelevant because they are not seeking the restraining order and their disturbed peace does not bear on whether father's peace was disturbed. More generally, father is at bottom asking us to reweigh the evidence. This is impermissible under the applicable standard of review.
DISPOSITION
The juvenile court's order is affirmed.
We concur: ASHMANN-GERST, Acting P. J., CHAVEZ, J.